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Politics as the Friend of Campaign Finance Reform

I would like to pursue Rick Hasen’s remarks on independent spending. He argues that independent spending can be corrupting. Consider the implication of his claim. Some independent spending funds ads calling for the election or defeat of a candidate for federal office. If such spending can corrupt, Congress can regulate it. Do we really want Congress to have such power over a kind of speech that directly threatens its most vulnerable members? Moreover, should we rely on Congress to make the determination that such spending can corrupt the legislature? The incentives for self-dealing by Congress seem especially strong regarding this type of spending. Perhaps Hasen may believe the virtue of members will overcome temptation, and Congress will use newly acquired power over independent spending to root out corruption. I take the side of temptation over virtue in this case and predict Congress would root out challengers. For that reason, I believe the Court’s view that independent spending cannot corrupt should not be thought of as an empirically contingent claim. It should rather be seen as a high wall limiting congressional power over spending on speech. Without that wall, Congress could regulate any criticism that might matter during an election season. With it, vital political speech will be beyond their grasp.

We have largely overlooked Bruce Cain’s proposal that the government collect but not disclose information on spending. This proposal answers Hasen’s concern about detecting corruption.

As noted earlier, Cain’s proposal would be open to the possibility of government abuse. However, if we put aside the possibility of prosecutorial abuse, what would be the danger? Someone leaks information about spending to the press. Government officials note who funds their opponents and retaliate. That danger would also exist with disclosure of independent spending. Even if under Cain’s innovation all major independent spenders were revealed in stories in the New York Times — a rather likely outcome I think — they would be no worse off than they would be if all independent spending were disclosed. Voters, meanwhile, would have some information they might want, whatever I might think about them wanting it.

Meanwhile, as our debate unfolds, politics is moving on. The New York Times reported November 23 that Democrats have begun raising money to support “outside groups” in 2012. Anonymity, the Times says, will make that task easier. If the Democrats do well with such fundraising, partisanship will leave mandated disclosure of independent spending with few friends on Capitol Hill. For now, politics is no longer the friend of campaign finance regulation.

Also from This Issue

Bruce Cain’s lead essay calls for a compromise on campaign finance disclosure. We want many things from our election law, he notes – the freedom to speak, a process that both is and appears to be just, a well-informed electorate, and protection for the holders of controversial opinions. Cain suggests semi-disclosure as a good way to get most of what we want. He advocates “the full reporting but only partial disclosure of campaign donor information.” Semi-disclosure of the type Cain suggests is already used in the release of census data, where individual privacy is respected even while demographers gain valuable information from the aggregate. Giving voters information about campaign contributions without giving them donors’ names would allow voters to consider the nature of a candidate’s or a measure’s supporters while shielding those supporters from personal attack, Cain argues.

In his response essay, John Samples notes that disclosure discourages people from participating in the political process. When someone decides not to do something, that decision is all but invisible to researchers who might wish to study it. Disclosure also shifts attention from the content of speech to the identity of the speaker, which is not necessarily the best basis for decisionmaking. The paternalism of disclosure is also a problem, as he sees it: the government appears to be trying to keep you from hurting yourself, even if you decline to fulfill your responsibilities as a citizen by examining the issues on their merits.

In her response essay, Nikki Willoughby argues that anyone who opposes full disclosure of donors’ identities probably has something to hide. Spending money isn’t speech; it’s a commercial transaction, and thus regulable under our law. Moreover, even if campaign finance were a matter of speech, some speech always has been subject to regulation, including slander, libel, and speech that incites imminent acts of violence. We should likewise regulate speech that imminently threatens our democracy, by mandating that sources of such speech are disclosed. Secrecy destroys trust in government, driving citizens away from political participation. Openness wouldn’t chill participation – openness would encourage it.

Richard Hasen offers some objections to Cain’s case for semi-disclosure. Cain’s plan doesn’t seem to appreciate sufficiently the benefits of disclosure; whereas public disclosure and analysis by independent watchdog groups can provide fairly sophisticated monitoring of campaign finance data, we shouldn’t expect the government to provide all the details about patterns of campaign contributions that we might desire. Further, he finds little benefit to demographic data about campaign finance shorn of names and public identities of major contributors.

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